Siskind Susser is excited to announce that Lynn Susser was recently elected to ABIL, the Alliance of Business Immigration Lawyers. ABIL is comprised of over 20 lawyers from top tier immigration practices with years of expertise and a comprehensive understanding of immigration law. For more information on ABIL, including a map of ABIL attorneys worldwide, visit their website at www.abil.com.
The following articles are excerpts from ABIL’s monthly Immigration Insider, available here on their website.

 

Labor Dept. Extends Emergency Procedures for Backlogged H-2B Applications Through April 29

The Department of Labor’s Office of Foreign Labor Certification (OFLC) continues to experience significant delays in processing employers’ H-2B applications for certification and is therefore extending the availability of emergency procedures through April 29, 2016. OFLC explained that the delays have been generated by several factors, the most significant of which was a 17-day certification processing pause at the Chicago National Processing Center (CNPC) needed for OFLC to implement changes to comply with revisions to the H-2B prevailing wage and certification standards under an appropriations law Congress passed in late 2015.

OFLC said the delays in the certification process that applicants are continuing to experience “impair the ability of employers to hire foreign workers when needed, and create instability for small businesses that depend on temporary and seasonal workers.” OFLC has concluded that the delays still preventing the timely processing of H-2B applications “constitute good and substantial cause under 20 CFR § 655.17 for employers to request emergency procedures of their currently pending applications.”

Therefore, OFLC said, employers with pending H-2B applications will be able to continue to request the emergency procedures under 20 CFR § 655.17 through April 29, 2016, so that CNPC can address the current application processing backlog.

The announcement is at https://www.foreignlaborcert.doleta.gov/  (scroll to March 28). The full announcement of the emergency procedures initiative and details on how employers can continue to participate is at https://www.foreignlaborcert.doleta.gov/pdf/H-2B_EmergencyProcessing_Initiative.pdf.

 

E-Passports or Visas Are Now Required for VWP Travelers to United States, DHS Secretary Announces

Department of Homeland Security (DHS) Secretary Jeh Johnson recently announced that effective April 1, 2016, Visa Waiver Program (VWP) participants must have an e-Passport to travel to the United States. Under the Visa Waiver Program Improvement and Terrorist Travel Prevention Act, VWP travelers who do not have an e-Passport from a participating VWP country must obtain a visa to come to the United States.

Secretary Johnson’s statement is at https://www.dhs.gov/news/2016/04/01/statement-secretaryjeh-c-johnson-strengthening-travel-security-e-passports.

 

May Visa Bulletin Sets Final Action Date for EB-4 Visas for El Salvador, Guatemala, Honduras Special Immigrants

The Department of State’s Visa Bulletin for May 2016 reflects a final action date of January 1, 2010, for EB-4 visas for special immigrants from El Salvador, Guatemala, and Honduras. This means that starting in May, an applicant from any of these countries who filed a Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant on or after January 1, 2010, will not be able to obtain an immigrant visa or adjust status until new visas become available. The final action date became effective upon publication of the May Visa Bulletin on April 12.

The Visa Bulletin explains that these three countries have already reached their EB-4 visa limits as congressionally mandated for fiscal year 2016, which ends September 30. Information on EB-4 visa availability for fiscal year 2017 for El Salvador, Guatemala, and Honduras will appear in the October Visa Bulletin (to be published in mid-September).

Petitioners from any country, including El Salvador, Guatemala, and Honduras, may continue to file Forms I-360. There is no annual limit on the number of I-360 petitions that USCIS may approve.

The Department said it will accept all properly filed submissions of Form I-485, Application to Register Permanent Residence or Adjust Status, under the EB-4 classification until April 30, 2016. USCIS noted:

  • We will process and make a decision on your Form I-485 application only if you have a Form I-360 filed before January 1, 2010, that is ultimately approved.
  • If you have a pending Form I-360 filed on or after January 1, 2010, we will process and make a decision on your Form I-360 but withhold a decision to approve your Form I-485 application pending availability of an EB-4 visa.

The Department also stated:

If you file Form I-485 under the EB-4 classification after April 30, 2016:

 

ICE Nabs 21 With Fake ‘Pay-to-Stay’ New Jersey Sham College Sting

Twenty-one brokers, recruiters, and employers were arrested on April 5, 2016, who allegedly conspired with more than a thousand foreign nationals to fraudulently maintain student and foreign worker visas through a “pay-to-stay” New Jersey sham college set up as a sting operation. The arrests resulted from an extensive probe led by U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI).

According to ICE, the defendants, many of whom operated recruiting companies for purported international students, were arrested for their involvement in an alleged scheme to enroll foreign nationals as students in the University of Northern New Jersey (UNNJ), a purported for-profit college located in Cranford, New Jersey. HSI special agents created UNNJ in September 2013.

Through UNNJ, undercover HSI agents investigated criminal activities associated with ICE’s Student and Exchange Visitor Program (SEVP), including but not limited to student visa fraud and the harboring of aliens for profit. The UNNJ was not staffed with instructors or educators, had no curriculum, and conducted no actual classes or education activities. The UNNJ operated solely as a storefront location with small offices staffed by special agents posing as school administrators.

UNNJ represented itself as a school that, among other things, was authorized to issue a Form I-20, Certificate of Eligibility for Nonimmigrant (F-1) Student Status for Academic and Language Students. During the investigation, HSI special agents identified hundreds of foreign nationals, primarily from China and India, who previously entered the U.S. on F-1 nonimmigrant student visas to attend other SEVP-authorized schools. Through various recruiting companies and business entities located in New Jersey, California, Illinois, New York, and Virginia, the defendants then enabled approximately 1,076 of these foreign individuals—all of whom were willing participants in the scheme—to fraudulently maintain their nonimmigrant status in the U.S. on the false pretense that they continued to participate in full courses of study at UNNJ.

Acting as recruiters, the defendants solicited the involvement of UNNJ administrators to participate in the scheme, ICE said. During the course of their dealings with undercover agents, the defendants fully acknowledged that none of their foreign national clients would attend any courses, earn credits, or make academic progress toward an actual degree in a particular field of study. Rather, the defendants facilitated the enrollment of their foreign national clients in UNNJ to fraudulently maintain student visa status in exchange for kickbacks, or “commissions.” The defendants also facilitated the creation of hundreds of false student records, including transcripts, attendance records, and diplomas, which ICE said were purchased by their foreign national conspirators for the purpose of deceiving immigration authorities.

In other instances, ICE noted, the defendants used UNNJ to fraudulently obtain work authorization and work visas for hundreds of their clients. By obtaining this authorization, a number of defendants were able to outsource their foreign national clients as full-time employees with numerous U.S.-based corporations, also in exchange for commission fees. Other defendants devised phony IT projects that were purportedly to occur at the school. These defendants then created and caused to be created false contracts, employment verification letters, transcripts, and other documents. The defendants then paid the undercover agents thousands of dollars to put the school’s letterhead on the sham documents, to sign the documents as school administrators, and to otherwise go along with the scheme, ICE said.

“All of these bogus documents created the illusion that prospective foreign workers would be working at the school in some IT capacity or project,” ICE said. The defendants then used these fictitious documents fraudulently to obtain labor certifications issued by the Department of Labor and then ultimately to petition the U.S. government to obtain H1-B visas for nonimmigrants. These fictitious documents were then submitted to U.S. Citizenship and Immigration Services (USCIS). In the vast majority of circumstances, the foreign worker visas were not issued because USCIS was advised of the ongoing undercover operation, ICE said.

In addition, ICE said that HSI Newark is coordinating with the ICE Counterterrorism and Criminal Exploitation Unit (CTCEU) and the SEVP to terminate the nonimmigrant student status of the 1,076 foreign nationals associated with UNNJ and, if applicable, administratively arrest and place them into removal proceedings.

A chart at the link below outlines the charges for each defendant. The charges of conspiracy to commit visa fraud and making a false statement each carry a maximum potential penalty of five years in prison and a $250,000 fine. The charges of conspiracy to harbor aliens for profit and H-1B visa fraud each carry a maximum penalty of 10 years in prison and a $250,000 fine.

Meanwhile, SEVP announced on April 5, 2016, that it terminated initial and active student records of any nonimmigrant student enrolled at UNNJ, as well as many active nonimmigrant students who have since transferred from UNNJ.

The announcement is at https://www.ice.gov/news/releases/21-charged-fraudulently-enablinghundreds-foreign-nationals-remain-us-through-fake-.  A related announcement from the Department of Justice’s U.S. Attorney’s Office for the District of New Jersey is at https://www.justice.gov/usao-nj/pr/21-defendants-charged-fraudulently-enabling-hundredsforeign-nationals-remain-united.

 

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This newsletter was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers (www.abil.com), of which Lynn Susser is an active member.

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Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.

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